If there is a lesson to be learned from the first weeks of consultation on the Family Code project, it is the need to study it in depth, to read it and reread it, to understand its content. There will be no gaps for misinterpretation or misrepresentation, not only for those born of ignorance but also for those arising from ill will.
In some of these categories, and even in both, could include the debate that has taken flight these days on the terms "parental authority", replaced by "parental responsibility" in the new regulatory body, "progressive autonomy", "interest superior of the minor”, taken as a spearhead to attack an advanced, plural and inclusive Code, and tempered to the current Cuban reality.
"Parents will no longer have power over their children because parental authority is eliminated"; «now children can decide and do what they want without parental permission», are some of the distorted opinions that continue to circulate on social networks and perhaps in some neighborhood meeting, to the detriment of the real content of the norm submitted to query.
In the Code project, Dr. Ana María Álvarez-Tabío Albo, professor at the Faculty of Law of the University of Havana, categorically affirms, "what we have known as parental authority until nowadays is not eliminated. It is only being given to that set of “…faculties, duties and rights that correspond to mothers and fathers for the fulfillment of their function of assistance, education and care of their minor daughters and sons. It could affect their personal and patrimonial sphere. Moreover, it is always exercised for the benefit of their superior interest…” the name that is most consistent with its content, which, in harmony with the essence of the institution, far from being weakened is reinforced, but not in terms of power or subjection of the fathers over their children, but of responsibility towards them.
In order to understand the meaning and, above all, the scope of the terms in question within the proposed family law, it is essential, in the opinion of Álvarez-Tabío Albo, who is also a member of the Code's drafting commission, to order the arguments in three directions;
The origin of the term parental authority and the evolution of its content, which leads us to understand the concept of parental responsibility, in correspondence with the Cuban constitutional text of 2019 and the international treaties of which Cuba is a signatory.
The meaning of the phrase progressive autonomy, which is part of one of the principles on which parental responsibility is built.
Establishing a kind of comparative reading between article 134 of the Family Code project, referring to parental responsibility, and article 85 of the current Code, in order to verify that it is only a more detailed and abundant wording, of a more accurate description that "opens" the one already contained in the current text and updates it in harmony with the new socio-family realities that Cuban families live today.
− What was the origin of the term parental authority and what has been its evolution?
− The origin of parental authority dates back to Roman Law. In the field of family law, it has been fundamentally associated with two institutions: marriage and relations between parents and their children.
«Marital power meant the absolute submission of the woman to the husband, to the point of controlling her personal relationships and her correspondence, of automatically acquiring the husband's nationality; he was the one who set the marital domicile and granted or not the authorization for the woman to exercise a profession, or the marital license to carry out certain acts.
«Regarding the children, from their very name it denounces their character. Under its protection, the family domestic imperium was granted to the male, which the law recognized as potestas; the paterfamilias had absolute power over all free and unfree persons belonging to the family, including the power of life and death over his sons and daughters.
“Over time, parental authority was losing its absolutist character, moderating some aspects of its content. People begin to talk about a set of rights, not powers anymore; the rigidity of the Romanist notion is relaxed; the mother is included as holder and exercitant and is reserved for minor children, not all descendants. But the attention is focused on the set of rights of fathers and mothers, the gaze never turns towards the son or daughter.
"On the other hand, the term authority, according to the dictionary of the Royal Spanish Academy, means" dominion, power, jurisdiction or faculty that one has over something ". In the legal field it has a strong presence and encompasses concepts such as power, right and duty: power, because whoever possesses it may use the force of their authority to enforce it; right, because whoever has it can execute it before certain people so that they comply with their duties; and duty, because whoever has it is obliged to exercise it. It is associated with the idea of superiority or pre-eminence of one party over another, as long as they are linked by a legal relationship. In addition, outside of Law, its connotation remains along similar lines.
«One could ask oneself then: why maintain a concept from Roman Law that literally represents the kingdom or power of the pater? Why preserve the term parental authority, which is closer to notions of power, inequality, imbalance and subordination, to refer to the set of duties, powers, obligations, responsibilities and rights that today correspond to the mother and the father on an equal plane?
«Under the name “patria potestas” hides a whole patriarchal ideology that has placed women throughout the centuries in legal inferiority compared to men, especially in their position within the family. The defense of this expression in the regulations opposes the principle of equality, as an informant of the legal system, and if we want to banish from the collective imagination this idea of "man's power by nature", we must start by suppressing the terms and concepts that keep alive.
«The old parental authority is seen today as parental responsibility, a name that accounts for the changes that have occurred in the relationship between mothers and fathers with their daughters and sons, exercised in their interest, according to their personality, with respect to their rights and their physical, mental and emotional integrity, and includes the range of duties, powers and rights described in article 134 of the project of the Family Code».
− How, then, do we arrive at the contemporary term of parental responsibility?
−To banish the idea that authority conveys, it was necessary to replace it with a solid word that does not lead to misunderstandings or ambiguities, such as the word “responsibility”, which in everyday language refers to commitment and which, in effect, means that: faculties that they have to which are added obligations and care. It also includes everything that is as important in terms of parental relations as attention, education, accompaniment, care, ensuring the comprehensive development according to the interests of our children and adolescents...
“Clearly, the replacement cannot be only in terms of terms, but rather it focuses on the deep transformation that has taken place in life and in intra-family dynamics, particularly in the bond between mothers and fathers with their daughters and sons, as well as in the purposes and scope of the institution, in light of the international doctrine of human rights.
«The concept of parental responsibility has its origin in the Children Act of 1989 and, subsequently, it is inserted in international jurisdictional cooperation agreements, but, above all, it was incorporated into multiple international conventions, especially that of the Rights of the Child (CRC). ), signed and ratified by Cuba and to which it must comply.
«The Preamble of the CRC understands parental responsibility as an institute conducive to the integral formation, protection and preparation of the child for "the full and harmonious development of his personality" and to "be fully prepared for an independent life in society". It not only includes the functions of food, support and housing, but also the normative functions, say those tending to education, differentiation and socialization.
“Its articles 5 and 18 tell us about the obligation of the States parties to respect the responsibilities, rights and duties of parents, and they bear the primary responsibility for the upbringing and development of the child with the fundamental concern placed on their best interest.
“This important legal text, the most ratified by the countries of the international community, refers to what until now has been called “parental authority” as “parental responsibility”, adding that it will be exercised respecting the rights of children and their best interests.
“With all Cubans immersed in the change of family legislation, it is the precise moment to eliminate the concept of parental authority from our legal system, using another one in accordance with the principle of equality and the approach based on the rights of the child.
«The notion of parental responsibility seeks to highlight a fundamental idea ¬: girls and boys are not an object owned by their mothers and fathers, but people who are entitled to rights, who must be cared for by them. In its modern conception, the faculties, authorities or parental rights do not disappear, but are justified and exercised based on the protection of the rights of boys and girls and their harmonious and integral development.
“In other words, adapting the term to the principle of equality implies making visible the co-responsibility, the equality of the father and the mother with respect to the legal function recognized in their favor towards their sons and daughters.
“If historically women have been seen, above all, as mothers, wives and educators, dedicated by nature to the upbringing of their children, this has been detrimental to men in their role as fathers. The decline of his presence is still latent, in the face of the mother's affirmation, which has placed him in areas of shadow or devaluation, which is manifested in the generalized idea that there is only one mother and the father can be anyone.
«It is about revolutionizing that vision towards that of the new parent, increasingly participating in everyday life and involved in the care of the child. The poor idea of fatherhood as fertilization, ability to support, authority and surname, by definition, gives way to fatherhood as a meaning in the development of man, as a key content in his identity.
«Speaking of parental responsibility allows us to go over the differences between the functions that have historically been attributed to motherhood and fatherhood, by granting an equivalent position to those who carry out the same educational practices».
− What principles support parental responsibility?
− The principles that inform parental responsibility, as guidelines to follow to fill the institution with content, in its effective application and for decisions in each specific case are:
Respect for the best interests of the child or adolescent (NNA) since the institution is at their service for their use and benefit.
That of absolute equality of mothers and fathers in their ownership and exercise, as long as there is no sentence against them that prohibits such recognition.
That of respect for the capacity and progressive autonomy of the NNA, since its exercise demands taking into account the personality and individuality of these and their own physical and psychological characteristics, their aptitudes and level of personal development.
The child's right to be heard and to have their opinion taken into account, according to their age and level of maturity.
− What to understand by progressive autonomy?
− Put simply: it is the ability of children and adolescents to exercise their rights as they develop mentally, emotionally and physically.
"At an early age it is very difficult for the rights to be exercised by the children themselves, they need the support of adults to ensure compliance, but as they grow they are increasingly capable of being able to exercise their rights with greater or greater minor intervention, according to their own circumstances, which is nothing more than the concrete expression of their right to participation.
«It is naive not to assume that this exercise is carried out gradually, to the extent that its degree of development and maturity advise it, so that the interrelation occurs proportionally: the greater the maturity and level of autonomy, the greater the independence in the exercise of their rights and less assistance will require their legal representatives.
“Childhood is a time of effective and progressive development of the personal, social and legal autonomy of this age group that reaches 18 years of age. The Law does not say so, Psychology has shown it. The evolution of autonomy is progressive depending on maturity, the social, economic and cultural environment in which girls and boys develop, as well as their particular aptitudes, together with the connotation of the decision (what type of rights implies, the risks it will assume, short and long-term consequences, among others).
«Fixed ages cannot be established to determine the degree of autonomy, since the process of maturity is not a linear process and equally applicable to all minors.
«What draws attention is the alarm about something that we live daily. Do we not appreciate the potential of our children during their younger age to the same extent and in correspondence with what they show us and are capable of doing? Haven't we gradually accepted their involvement in the issues that happen in our families, as we perceive what they are or are not prepared for?
“When our children are 3 or 5 years old, it is their mothers and fathers who make the decisions that affect them for them, for example, if we move house or which of their parents they stay with in case of separation or how they communicate with one or another; but once they turn 12 or 16, do we not take their opinion into account, do we listen to it, either because it is the style of education that we choose or because they themselves demand it of us, without this implying that in the end it is done, outrage, what they say?
"Similarly, as they mature and become emotionally intelligent, don't we give them and they take on more and more responsibilities in the family space? Can we decide for our children what career they are going to study? Can we force our daughter to take those 15-year-old photos that only make us excited as parents, or discourage her from doing it once she's decided?
“However, we cannot match the intensity of our intervention, as their legal representatives, when it comes to completing the vaccination scheme against diseases that have already been eradicated, to which all Cuban children have access, or protection by different means against sexually transmitted diseases, or a purely cosmetic surgery, or the placement of a piercing or a tattoo, or a tubal ligation or a vasectomy, or treatment for addictions, or to dispose of their own assets of considerable value.
“These are just a few examples in which you have to weigh factors such as age, maturity, your best interest, your health protection or not, and many other elements.
«That which we should assume as a habitual practice in the relationship dynamics in each of our families received a name: progressive autonomy. And it appears (or is expressly recognized) for the first time in the Convention on the Rights of the Child (CRC), an international instrument, binding on the signatory States, which establishes a legal framework of protection and comprehensive assistance for people under 18 years, recognizing them as taxpayers of rights, regardless of their place of birth, sex, religion, ethnicity, social class, family status, etc.
«Thus, as of 1989, a change of model takes place, and the minority of the person ceases to be, a priori and by itself, a negation of his volitional or cognitive capacity; and the State and families must, in any case, guarantee their rights. From this new paradigm, children and adolescents are seen as complete human beings who, although in the process of growth, must be respected for what they are, what they know, what they are capable of, and their own potentialities.
“The duty of guidance, accompaniment and direction of mothers and fathers, contained in parental responsibility, has one of its palpable manifestations in the principle of protection and promotion of the rights of children and adolescents, whose exercise is progressively developed. The legally recognized duties of mothers and fathers −which in turn are limits to the interference of the State− are not unlimited powers, but functions legally delimited towards an end: the progressive autonomous exercise of the rights of the child.
"That is, the consideration of the child as a subject of rights and the principle of progressive autonomy follows that he is the bearer of increasing responsibility for his actions, and can also, depending on his age and the evolution of his faculties, assume the consequences of their acts.
“More than three decades after the national ratification of the CRC, its recognition and transversal application is imposed, which is not limited to the family legal norm under construction, but concerns all spaces of social life. However, in many aspects, the conception of children as subjects of rights continues to operate only as a slogan, which does not change the representations and social practices that we have towards childhood and adolescence.
“At the family level, parents still have a hard time understanding that not only do we socialize with our children, we also learn from them and influence each other, and that listening to and including their voice does not mean uncritically supporting their opinions, but rather engaging in a respectful dialogue.
“Undoubtedly, the conception of the child as a subject of law forces us to progressively evaluate the autonomous exercise of their rights. This does not mean that the authority of fathers and mothers loses entity and strength, but rather that it be assertive and proactive in articulating mutual rights and obligations, in an inclusive and flexible manner, free from any manifestation of enslavement or violence.
«This notion allows parental responsibility to be viewed as a function of collaboration, guidance, accompaniment and even containment, established for the benefit of the underage person in development for their training and comprehensive protection, which leads us to another change: the old duty of correction and obedience is replaced by positive forms of upbringing».
− Regarding these issues, how much does the content of the draft Code change with respect to the current one?
− Article 134 of the draft Family Code is oriented towards the promotion and safeguarding of the well-being of daughters and sons, which includes their care, protection and education, the maintenance of personal relationships, the determination of residence, the admi ¬nistration of the property, and its legal representation.
"It reproduces, in essence and in a more open and separate way, the subsections of the current article 85, but the powers of legal representation and administration of the assets of their children, their right and duty to have them with them, care for them, provide them with love, emotional stability, educate them without violence, respect their own characteristics as unique and unrepeatable beings, taking into account their growth and gradual development; allow them to communicate with all their loved ones, provide them with a safe living space, free of violence, take care of their comprehensive hygiene and health, facilitate their proper leisure and recreation... protect them in all areas of their lives, including the digital environment...
“In the content of that article, at no time is it perceived that spaces are extracted from the vast responsibility of fathers and mothers towards their sons and daughters. In none of the statements do the mothers and fathers surrender their powers, duties and rights. These faculties only decline when there are breaches, when they are unknown, when there is neglect, mistreatment, violence, negligence, that is, in the face of dysfunctional actions by mothers and fathers, which demands a process of judicial scrutiny before any pronouncement.
"Evidently, the values that laid the foundations for the birth of parental authority no longer coincide with the vision that currently exists based on human rights and the principle of equality, so its definition emphasizes duties and, at the same time, , puts it before rights, thereby indicating that it is an institution that prioritizes the responsibility that exists with minor children.